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The Lessons of Kiryas Joel

By Lou Grumet and Justin JaMail

LOU GRUMET (EmmaWill@aol.com) was the plaintiff in the case discussed in this article. He was the then-executive director of the New York State School Boards Association. Mr. Grumet is a former Assistant Commissioner of the State Education Department for the Education of Handicapped Children, a current member of the Grace Advisory Board, and a past executive director of the New York State CPA Society. He holds a J.D. from New York University School of Law, an M.P.A. from the University of Pittsburgh, and a B.A. from George Washington University. JUSTIN JAMAIL is an associate with Morrison and Forester in Tokyo. He earned his J.D. from Fordham University School of Law and his B.A. from Columbia University.

s the executive director of the New York State School Boards Association, I fought a nearly decade-long series of suits to stop New York State from establishing a school district coterminous with the borders of the village of Kiryas Joel, a community comprised entirely of Satmar Hasidim, a sect of Hasidic Judaism. My colleagues and I considered this attempt to put a private religious organization in charge of a unit of government to be a flagrant violation of the New York State Constitution as well as the First and Fourteenth Amendments of the federal Constitution. From 1990 until 1998, with the incredible legal services of Jay Worona, the Counsel of the New York State School Boards Association, I won victory after victory on this point, including three successful trips to the Court of Appeals and one to the Supreme Court of the United States. Many law schools use this case in Constitutional Law classes to emphasize that there are clear limitations to what government can do to help a religious community. Yet, the school district never shut down. The school

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remains operational and has, in many ways, distinguished itself as an outstanding institution of its kind. Twelve years after the last court decision, I have been revisiting these cases and reflecting on the motive, purposes, costs and rewards of litigation under the American system.

The Issue
The issue involved a rapidly growing village in Orange County known as the Village of Kiryas Joel. In 1989, the village requested the state to establish a school district within the village, which would serve only the Hasidic community that resided there. When the legislation was signed by Governor Cuomo, it was the first time in American history that a governmental unit was established for only a single religious group. The legislation was overwhelmingly passed by both houses of the Legislature, with the Senate passing it during the middle of the night on the last day of the session as part of a package of bills. Although the Assembly

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Speaker was strongly opposed to the bill, it passed the Assembly 150-1, with only the local assemblywoman voting against it.

History
The dispute which brought about the desire for a new school district was based on an intriguing fact pattern. The Satmar Hasidim is one of the largest Hasidic groups in the world. It had its roots in Satu Mare, Romania, in what was then a part of Hungary. Members of the group followed a charismatic leader, Rebbe Joel Teitelbaum, to the United States in the aftermath of the Holocaust. The

A school district is a key unit of local government in New York State.
Rebbe and his followers settled in the Williamsburg section of Brooklyn. Their numbers grew rapidly and they became one of the most powerful voting blocs in New York City. Since Brooklyn is the largest Democratic county in the state, this made them one of the most powerful blocs in the state as well. In the 1970s, a large group of the Satmar, like many other city dwellers, chose to leave the city and establish a community in exurban Orange County. They bought land in the Town of Monroe, near Stewart Airport, and settled in. As they began building on the rural land they had purchased, they became involved in a series of conflicts with their neighbors concerning the style and density of the buildings. The ensuing zoning battle caused the Satmar to constitute their community into a new village. Under the New York State Village Law, a village can be created by 600 petitioners with contiguous properties. No other legislative approval is necessary. The residents built a very restrictive community structure which was in many ways theocratic. The children were educated in yeshivas and many of the civil actions were settled by Jewish law. The village residents married among themselves and had very large families. Unfortunately, the small, closely related population produced a large number of disabled children who needed services. The community was unable to provide these services without government assistance, and decided, after much anguish, to send the disabled children to the Monroe-Woodbury School District, which served the geographic area. Monroe-Woodbury is a large suburban/ rural school district with a long-term reputation for good educational services. An ever-increasing number of disputes followed. One involved the busing of the students to school. MonroeWoodbury scheduled the bus routes of its drivers by seniority, as provided in the union contract. The Satmar

wanted women bus drivers driving the girls and men bus drivers driving the boys, based on religious principles. Both sides felt very strongly and litigation ensued, ending in a decision which supported the district. The district had provided services such as bilingual education and remedial services to the students in sites adjacent to the yeshivas. Following the United States Supreme Court decision in Aguilar v. Felton, the district believed it could no longer do that and offered the services only within district buildings. Again, litigation ensued. This time, it ended with the New York Court of Appeals, in a 1988 decision by Chief Judge Judith Kaye,1 ordering the children to be served in a way consistent with the Supreme Court ruling. It should be noted that the Monroe-Woodbury District also showed some insensitivity in serving the disabled students. A field trip to a Mc Donald’s was quite upsetting to the parents of the strictly orthodox students, who ate only kosher food. Casting a developmentally disabled Satmar child as Rudolph the Red-Nosed Reindeer in a Christmas pageant created a major crisis. Justice Souter described the situation in his 1994 Supreme Court opinion:
The residents of Kiryas Joel are vigorously religious people who make few concessions to the modern world and go to great lengths to avoid assimilation into it. They interpret the Torah strictly; segregate the sexes outside the home; speak Yiddish as their primary language; eschew television, radio, and English language publications; and dress in distinctive ways that include head coverings and special garments for boys and modest dresses for girls. Children are educated in private religious schools, most boys at the United Talmudic Academy, where they receive a thorough grounding in the Torah and limited exposure to secular subjects, and most girls at Bais Rochel, an affiliated school with a curriculum designed to prepare girls for their roles as wives and mothers. These schools do not, however, offer any distinctive services to handicapped children, who are entitled under state and federal law to special education services even when enrolled in private schools. Starting in 1984 the Monroe-Woodbury Central School District provided such services for the children of Kiryas Joel at an annex to Bais Rochel, but a year later ended that arrangement in response to our decisions in Aguilar v. Felton, 473 U.S. 402 (1985), and School Dist. of Grand Rapids v. Ball, 473 U.S. 373 (1985). Children from Kiryas Joel who needed special education (including the deaf, the mentally retarded, and others suffering from a range of physical, mental, or emotional disorders) were then forced to attend public schools outside the village, which their families found highly unsatisfactory. Parents of most of these children withdrew them from the Monroe-Woodbury secular schools, citing “the panic, fear and trauma [the children] suffered in leaving their own community and being with people

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whose ways were so different,” and some sought administrative review of the public school placements. Monroe-Woodbury, for its part, sought a declaratory judgment in state court that New York law barred the district from providing special education services outside the district’s regular public schools. The New York Court of Appeals disagreed [in an opinion authored by Chief Judge Kaye], holding that state law left MonroeWoodbury free to establish a separate school in the village because it gives educational authorities broad discretion in fashioning an appropriate program.2

The Solution
The village was unsatisfied – both with the decision of the Court of Appeals3 and the implementation by MonroeWoodbury – and turned to the political process for help. At a meeting that included the village leadership, the Town Supervisor of Monroe, Assemblyman George Pataki and Congressman Ben Gilman, Assemblyman Pataki proposed creating a new school district coterminous with the Village of Kiryas Joel that would be under the control of the Satmar. A goal seems to have been to use the short-term crisis of the handicapped children to solve several other problems for the village. A school district is a key unit of local government in New York State, with the power to tax, hire and fire teachers, open and close schools, finance the construction and operation of schools, prescribe textbooks, establish disciplinary rules, receive and distribute state and federal assistance, etc. Most particularly, this would give the Satmar control of their own publicly subsidized school bus network (from the beginning of the Kiryas Joel School District, money for busing was the tail that wagged the special education “dog,” according to the first and longtime superintendent of the district). The school buses would serve all the students, disabled as well as nondisabled, wherever they attended school. At the time, Pataki was a minority member without much power in the Assembly, so he went to Assemblyman Joe Lentol, a Democrat who represented the Satmar enclave in Williamsburg, and asked him to sponsor a bill creating the new school district. He also asked the powerful Brooklyn Assemblyman Anthony Genovese to help convince Speaker Mel Miller to allow the legislation to pass. Then, as now, legislation has no chance of making it to a vote in either the Assembly or the Senate without the support of the majority leadership. Miller, a lawyer from Brooklyn, rejected the idea immediately as unconstitutional. After his initial rejection however, Miller was persuaded by Genovese to allow the bill to go forward to solidify the support of the Williamsburg Satmar in certain city-wide elections. In a recent interview, Speaker Miller indicated that he was not concerned by the bill because he assumed that (1) it

wouldn’t pass the Senate, (2) Governor Cuomo would veto it, or (3) the courts would certainly overturn it. Most observers assumed the proposed legislation would not go anywhere, and the large education lobbying groups did not lobby one way or the other. The night it passed came as a rude awakening, causing me and the President of the Teachers Union to have discussions concerning the threat that a new district carved out for a religious group might represent to our constituencies. We agreed that it was clearly unconstitutional, and we also worried that once such a district was approved, there would likely be many more special population districts. It was decided that I would speak with my former boss, Governor Cuomo, and ask him to veto the legislation. I met with the Governor several days later, after a New York Times story raised the constitutional issues in an article. At the meeting, the Governor indicated awareness of the legislation and made it clear that he was supportive. He indicated that the children in the district were all special education children who were not being served properly. The non-special education students would continue to be served in the private schools. I had previously run the state’s special education program and said the 13 kids involved at that time could be easily served in other ways under constitutional provisions. The MonroeWoodbury School District had the responsibility to do so, and the State Education Department had an obligation to see that it was done. I noted that the legislation did not limit the services to the disabled. Cuomo said that the Satmar didn’t ask for much legislatively, and he thought they were entitled to this law. He also asked who might challenge it in court; I said that I would.

Court
I challenged the law on its face, not on its application, and indeed, the village argued that the case was premature. My rationale was that the statute, by establishing a governmental unit for a religious group, was unconstitutional no matter how the village applied it. My challenge was also driven by my lack of resources for discovery. In Albany Supreme Court, Judge Lawrence Kahn (now of the Northern District) agreed that the legislation was unconstitutional. He stated that the law violated all

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three prongs of the “Lemon Test”: It had a sectarian, not a secular purpose; it was designed to advance the religious beliefs of the village inhabitants; and it would entangle the state with the residents’ religious beliefs. My association was ruled to not have standing; but my standing, as a citizen taxpayer, was upheld. The Satmar appealed, and the decision was affirmed by the Appellate Division, although with a strong dissenting opinion. It was then appealed to the state Court of Appeals. This prestigious court was widely thought to be the best in the nation. Interestingly, every member had been appointed by Governor Cuomo, who strongly supported the law that was being challenged. (He was also the first governor in history to appoint every member of the Court.) The Court had to deal with the issue of not having any evidence on the statute’s application and also whether the rationale for the law was religious or secular. In other words, were the children being discriminated against based on their culture, or was it an issue of religious beliefs? One of the amicus briefs strongly argued the Blaine Amendment should be considered as a basis for decision making, which the lower courts had not done. The brief also argued that the law was a direct affront to the constitutional provisions concerning establishment, over and beyond the issues underlying the prongs of the Lemon Test, and called for application of a strict scrutiny test. The Satmar argued that they were not establishing a religious entity, but were removing an obstacle to students receiving necessary services, an obstacle due to their religion. The Court affirmed the decisions of the lower courts in an opinion by Judge George Bundy Smith,4 which focused on the second prong of the Lemon Test. A fascinating concurring decision was written by Chief Judge Kaye, which did not go to the Lemon Test or the Blaine Amendment. Instead, she went to the strict scrutiny test, which she thought was the appropriate test for a law that put a government entity under the de facto control of a religious organization. Judge Kaye argued that establishing a fully empowered school district went well beyond the need to provide services to a handful of children. Stressing her sense that the law was wildly out of proportion to the problem, Judge Kaye’s opinion was a thinly veiled rebuke of the Legislature. Interestingly, the Court of Appeals, despite its general preference for resolving cases under New York state law wherever possible, did not make any ruling under the New York Constitution, thus clearing the way for a Supreme Court hearing, which was soon granted (by Justice Clarence Thomas). It is somewhat noteworthy that many church/state issues which could be decided on state constitutional provisions are ultimately decided by the Supreme Court. Indeed, the establishment clause is often considered a special province of the federal courts.

Once the Supreme Court granted certiorari, the national news media gave great coverage, with segments on 60 Minutes, Larry King Live, The Today Show, C-SPAN, Time Magazine and National Public Radio, along with editorials in all the major dailies. I still believe that the heavy media coverage, which was almost unanimous in its support of my position, played an important role in all of the trials, including at the Supreme Court. Linda Greenhouse, the longtime Supreme Court reporter for the New York Times, said the case had “the makings of a potentially great Supreme Court case precisely because the issue it raises cuts across all the established categories and goes to the heart of the matter – to what extent may the secular state accommodate the needs of a religious population?” She noted that as more and more services get funding, a conflict between the Establishment Clause and the Free Exercise Clause was inevitable. The arguments at the Supreme Court were quite dramatic. My lawyer was Jay Worona, the young counsel of the School Boards group. Jay was volunteering his time on evenings and weekends; he had never been to the Supreme Court, except as an observer once or twice. The Satmar were represented by Nat Lewin, the veteran high court litigator who had argued over two dozen cases. It had all the elements of David versus Goliath. The justices immediately started asking about whether the benefits for the Satmar under the legislation were available to other religious groups, or indeed to the non-religious as well. Lewin said that the case was about children being denied services because of their religious beliefs. He argued that the village establishment had not been challenged, and the school district could follow village lines, even though New York law made it clear that only state legislation could create a school district, which was not an approved village service. Justice Kennedy questioned where the district had been gerrymandered along religious lines. Justice Scalia hammered his points about the village residents being discriminated against because of expression of religious principles. The State Attorney argued the distinction between advancing religion and accommodating it. Justice O’Connor kept returning to the issue of neutrality among religions. Justice Souter asked about the strict scrutiny criteria that Judge Kaye raised at the state Court of Appeals. Justice Rehnquist questioned whether the segregation within the district was really religious or whether it was linguistic and cultural. The justices seemed to be debating each other more than questioning the attorneys presenting their cases. Due to Justice Blackmun’s donating his conference notes to the Library of Congress, we know what happened during the Court’s deliberations. A couple of days after the hearing, the justices met in conference to consider the case. Contrary to the belief on both sides that the result was uncertain, the conference ended with a 6-3 major-

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ity affirming the New York courts. According to Justice Blackmun’s notes, that majority never wavered. The case was first assigned to Blackmun, but then it was reassigned to Souter to write the majority opinion. The decision was announced on the last day of the 1994 session.

Back to the Legislature
That might have resolved the dispute, but it did not. Four days later, Governor Cuomo submitted a new legislative proposal. Once again, it was put in front of the Legislature

During the time the case was being considered, Governor Cuomo faced a re-election campaign against State Senator George Pataki, creator of the original legislation. While campaigning in the Village of Kiryas Joel, Governor Cuomo promised to enact new legislation to solve the problem if the second law was declared unconstitutional. The speech was filmed by a crew who gave it to 60 Minutes. When I heard of the promise, I compared it in the media to southern governors’ reaction to Brown v. the Board of Education in the 1950s. 60 Minutes ran a seg-

The statute, by establishing a governmental unit for a religious group, was unconstitutional no matter how the village applied it.
on the final day of its session. Once again, it was voted on in the middle of the night. While the first legislation did not receive any attention until it passed, the new legislation was opposed editorially by almost every newspaper in the state. The pressure of appearing to override the U.S. Supreme Court four days after it rendered a decision did not seem to affect the legislators. This time a handful of legislators opposed the legislation, but still it was an overwhelming vote in favor. Also, Speaker Miller, who didn’t like the proposal, had been succeeded as speaker by Sheldon Silver, who was an extremely strong supporter. Speaker Silver had a second home in Orange County, and he knew the area well. He is also very sympathetic to religious accommodation issues. The key difference between the two pieces of legislation was that the original named the Kiryas Joel district specifically; the second set forth supposedly neutral criteria, for the creation of new school districts (an attempt to deal with Justice O’Connor’s issue of neutrality). The only problem was that the only district which could have been created under the stated criteria was Kiryas Joel. The transparent attempt to circumvent the courts infuriated the media, and I immediately filed new litigation. In a press conference, I referred to the second legislation as the “Son of Sham.” What followed was a series of somewhat bizarre events. In deciding a simple procedure motion, Judge Harris wrote an extremely lengthy opinion responding to the Supreme Court rationale in the first case. The case then moved to Judge Kahn, who had decided the first case in the Albany Supreme Court. Kahn surprised most observers by deciding that the second legislation was constitutional, basically because it might apply to some other district at some time. Therefore it was neutral. I appealed, of course, and the Appellate Division and the Court of Appeals swiftly overruled Kahn’s decision. The Court of Appeals was unanimous, and there was no appeal to the Supreme Court. ment on the issue the Sunday night before the election, which Pataki won. After the second case was decided by the Court of Appeals, Speaker Silver’s staff, the Satmar, the State Education Department and I attempted to find a way to serve the children within the boundaries of the Constitution. Several times we reached tentative agreements on an approach, only to have someone oppose the proposed agreement after discussing it with colleagues who were not in the room. The Hasids were concerned about religious principles. The state was concerned about precedent setting. After Governor Pataki took office, he proceeded to introduce a third piece of legislation to solve the issue. His office claimed that more than 60 possible districts would meet the revised criteria. I sued again and deconstructed the criteria to show that only two possible districts could fit them – Kiryas Joel and Stony Point, a nearby Rockland County district which had a major problem brewing between its Latino community and the surrounding district. This time all three levels of courts in New York invalidated the law. The Court of Appeals chastised the Legislature for repeatedly attempting end-runs of court decisions, while the dissenting opinion suggested that trying to fix a problem was appropriate. Indeed, it suggested that the case no longer be looked upon as one of David versus Goliath. Finally, the Satmar hired former Speaker Miller as a consultant to draft a fourth legislative proposal which was broad enough to possibly pass constitutional muster. I had left the School Boards Association by that time and it appeared to lose interest in pursuing the matter. Dissidents in the village who thought the law violated Talmudic principles filed litigation, but it didn’t go anywhere. I believe that had the courts considered the law fully, it would have been struck down once again. It fascinates me that no other district has been created under the provisions of the fourth statute.

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Lessons
The Kiryas Joel School District remains open, and it serves several hundred disabled Hasidic children from the surrounding region. The courts eliminated the most obviously unconstitutional provisions of state law. The cases are widely read in law school, as delineating the limits of how far is too far in establishment law cases. Indeed, Pat Robertson’s counsel refers to the Supreme Court case as a bookend case. Interestingly there have been no more serious attempts to overturn the Lemon Test, which the Court uses to decide establishment provision cases. So, one could argue that the case was successful in settling a highly controversial area of constitutional law. That is an oversimplification, however. The case did make it clear that a state cannot establish a governmental unit to serve only one group of religious individuals. It also took James Madison’s view that neutrality among religious viewpoints is a primary consideration for determining what is constitutional and what is not. It did not consider the stricter separation views of Thomas Jefferson, which entail a complete separation of church and state. This is a critical distinction as governmental spending for faithbased organizations becomes more amenable to both liberals and conservatives. But the real lesson is that the legislation should never have happened. It represented a total failure of the education system to live up to its responsibilities. The parents insisted on publicly funded isolation from society. It was not a religious choice in its purist form; it was a demand for funding their way of life. The school district, which had a legal responsibility to serve the disabled children in question, acted in almost total disregard of the law and with total disrespect for tolerating different lifestyles. Most significant, the State Education Department, which has the statutory duty to enforce the provision of services to disabled youngsters, failed to intervene and ensure such services. It did not intervene with the district or the parents. It did not help the Legislature find an acceptable solution. The department kept such clean hands that everyone else got dirty ones. The Legislature acted as if this were a local issue and not a constitutional one. The legislators responded to political pressure rather than to their responsibilities to uphold the Constitution. The same can be said for two governors. Interestingly, those who wanted to use public funding to support faith-based schools found another route – charter schools. While they existed in some scattered areas, they took off after the door to new school districts was closed by the Supreme Court. Faith-based organizations found support from governmental entities that was neutral and followed the Supreme Court parameters. Not one charter school has yet failed the test. So an old lesson is in front of us: If the government had acted as it should have at all levels, or even at some

levels, the legislation and the ensuing litigation would have been unnecessary. Indeed, a troubling issue is that the government – at all levels – realized it had no need to act responsibly and follow its duties because those who were in government knew that the courts would act in its stead, a point that Speaker Miller admits freely. Did litigation solve the problem? In some ways, yes. After 10 years of trials, thousands of hours of work, and an important precedent, it is clear that a governmental entity cannot be formed for one religious group. Yet, the school district still exists, pretty much as intended. Somehow, I’m not troubled by the continuation of the school district. Kids’ needs are being met, and the provisions of the Constitution were upheld. There are many purposes served and needs met by our system of litigation, but it’s rare that any one case serves all of these purposes and meets all of these needs. In my case, I did not achieve my immediate purpose of shutting down the Kiryas Joel School District and pursuing an integrationist approach, which seemed to be required of the Monroe-Woodbury community. On the other hand, I did get confirmation from the courts that the Constitution is alive and well – and I believe this more than anything else satisfied the plaintiff in me. Whatever happened afterwards, whatever end-runs the Legislature and Governor later devised, the courts forced them to keep trying till they fixed the constitutional problem. Nothing brings home the checks and balances in our system of government like taking the government to court and forcing it to obey the Constitution. Yes, I still think it’s a problem that the students and teachers of the Monroe-Woodbury School District were deprived of an opportunity to learn tolerance and the value of diversity. But they weren’t deprived by the Satmar’s request; they were deprived by their government’s response to the request – and lawsuits brought by me or anyone else are never going to solve that problem permanently. The problem can only be solved when the voters of New York remember that self-government requires cultivation and attention. It requires using the courts when the government goes astray. Litigation can, and did, accomplish all that could be expected of a system of dispute resolution – my complaint was heard and, armed with a few lines from the Constitution and a small book of procedural rules, I was able to force compliance on people and institutions immeasurably more wealthy and powerful than I was. ■
1. 2. 3. 4. Bd. of Educ. v. Weider, 72 N.Y.2d 174 (1988). Bd. of Educ. of Kiryas Joel v. Grumet, 512 U.S. 687, 691–92 (1994). Weider, 72 N.Y.2d 174. Grumet v. Bd. of Educ., 81 N.Y.2d 518 (1993).

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